- The Washington Times - Wednesday, January 12, 2005

U.S. immigration authorities cannot indefinitely detain illegal aliens convicted of crimes in this country who have completed their prison sentences, the Supreme Court ruled yesterday in a 7-2 decision.

“The government fears that the security of our borders will be compromised if it must release into the country inadmissible aliens who cannot be removed,” Justice Antonin Scalia wrote in the majority opinion. “If that is so, Congress can attend to it.

“But for this court to sanction indefinite detention … would establish within our jurisprudence, beyond the power of Congress to remedy, the dangerous principle that judges can give the same statutory text different meanings in different cases,” Justice Scalia said.

Justice Scalia was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, Sandra Day O’Connor, Anthony M. Kennedy and Stephen G. Breyer. Chief Justice William H. Rehnquist and Justice Clarence Thomas dissented, saying the government should have greater authority to detain illegal immigrants for national security reasons — a position argued by the Bush administration.

The order comes in response to court challenges and conflicting decisions by separate U.S. courts of appeal involving two Cubans, Sergio Suarez Martinez and Daniel Benitez, who were among 920 immigrants who came to the United States in June 1980 as part of the “Mariel boatlift.”

They later were denied lawful permanent residence because of criminal convictions in the United States. Mr. Benitez has remained in custody since 1993 and Mr. Martinez since 2000.

Both completed their U.S. sentences in 2001, but have remained as detainees within U.S. Immigration and Customs Enforcement (ICE), under a 1996 law that tightened restrictions on criminal aliens. Under the law, aliens can be held for extended periods if the attorney general thinks they pose a threat to national security.

Nearly 2,300 illegal aliens who have completed their U.S. sentences on a variety of criminal charges are being detained by U.S. immigration authorities.

The Supreme Court ruled in 2001 that it would be unconstitutional to detain illegal aliens who have served time for crimes in this country for more than a “reasonable period” — generally six months — which would affect more than half of the aliens in custody.

“Both Martinez and Benitez were detained well beyond six months after their removal orders became final. The government having brought forward nothing to indicate that a substantial likelihood of removal subsists despite the passage of six months,” Justice Scalia said.

Susan Benesch, national refugee advocate for Amnesty International, said that since 1996, many noncitizens with criminal convictions of a serious nature are deportable under U.S. law, but remain in custody.

“Justice Scalia’s decision implicitly recognizes a fundamental principle that you can’t leave people rotting in prison indefinitely after they have long served their sentences,” she said. “You can’t apply a set of principles to one group and not another.”

In a separate decision, the high court said the United States could order an alien deported to his native country even if that country refuses to take them back. More than 8,000 Somalis being held in the United States are subject to deportation or are awaiting hearings.

Justice Scalia wrote that Congress intended that immigrants be deported without a country’s permission, and if the Somalis nationals fear retribution at home, they had other remedies for relief, including applying for asylum. He was joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy and Thomas.

Justices Souter, Stevens, Ginsburg and Breyer dissented, saying the statute allows the Somalis to stay.

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